CITY OF WEST CHICAGO v. U.S. NUCLEAR REG. COM'N

CITY OF WEST CHICAGO, A MUNICIPAL CORPORATION OF ILLINOIS, PLAINTIFF,v.UNITED STATES NUCLEAR REGULATORY COMMISSION, R.G. PAGE, AND KERR-MCGEE CHEMICAL CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: McGARR, Chief Judge.

MEMORANDUM OPINION AND ORDER

This cause is currently before the court on two motions. The
plaintiff, the City of West Chicago ("West Chicago") has filed an
amended petition for a preliminary injunction. The United States
Nuclear Regulatory Commission (the "NRC" or the "government"),
one of the defendants, has filed a motion to dismiss in which it
has been joined by the other defendant, Kerr-McGee Chemical
Corporation ("Kerr-McGee"). Since both motions can be resolved on
the same grounds, the court will address them together in this
opinion.

This cause is one of a series of actions brought by West
Chicago against the NRC and Kerr-McGee. These actions stem from
the operation of Kerr-McGee's Rare Earth processing facility in
West Chicago. Chemical compounds containing thorium, a naturally
occurring radioactive element, were produced at this plant.
Because thorium was involved, the facility was originally
licensed by the Atomic Energy Commission, the predecessor in
authority to the NRC. Production at this site ceased in 1973 and
now Kerr-McGee is in the process of decommissioning the site.

At issue here is the demolition of several buildings at the
West Chicago location. Their demolition was authorized by the NRC
in an amendment to Kerr-McGee's license dated September 28, 1981.
West Chicago then filed this complaint and a petition for a
temporary restraining order ("TRO"). A hearing was held during
which the plaintiff alleged that the NRC issued the license
amendment without a hearing and without notice to the plaintiff.

The court granted the plaintiff's request for a TRO on October
21, 1981. The order required the NRC to consider the plaintiff's
request for intervention and a hearing on the licensing amendment
proceedings.

Now West Chicago is before the court with a request for a
preliminary injunction. The action is framed primarily as a
mandamus action, 28 U.S.C. § 1361, although federal question
jurisdiction is also asserted. 28 U.S.C. § 1331.

On February 11, 1982, the NRC issued its order reaffirming the
issuance of the amendment to Kerr-McGee's license. The NRC's
order was issued after it complied with the court's direction
that it provide West Chicago with proper notice of its
deliberations. According to the government, the NRC considered
all the information presented to it pertaining to the proposed
licensing amendment. This included all the information submitted
by the parties to this suit as well as the NRC's staff analysis
of the environmental impact and health and safety considerations
involved in the decision.

In the February 11 order, the NRC also considered West
Chicago's request for a hearing. The NRC determined that none of
its regulations nor any due process considerations entitled West
Chicago to a hearing. To the extent that the Atomic Energy Act
("AEA") provides for hearings in proceedings by this type,
42 U.S.C. § 2239(a), the NRC found that an informal hearing, based
on written submissions of the parties, was an appropriate
procedural mechanism to consider fully a challenge to the
proposed licensing amendment.

The complaint brought by West Chicago can be summarized as
follows: The plaintiff asserts that the NRC's amendment to
Kerr-McGee's license allowing demolition of certain buildings and
receipt for temporary storage of thorium was granted in violation
of NRC regulations, the AEA, the due process clause of the
Constitution and the National Environmental Policy Act ("NEPA").
In short, the plaintiff seeks judicial review of the NRC's
license amendment on the grounds that it was improperly issued.
These allegations are contained in Counts V through XII of the
complaint.

Specifically, the government contends that inasmuch as Counts
V through XII of the complaint attack the validity of the
licensing amendment there can be no doubt that this was a final
order in a licensing proceeding over which the court of appeals
has exclusive jurisdiction to review. Natural Resources Defense
Counsel v. NRC, 606 F.2d 1261 (D.C.Cir. 1979). Of course, a
specific grant of authority to the court of appeals supersedes
the more general grants of federal question or mandamus
jurisdiction upon which West Chicago bases this case. For this
reason, the NRC urges this court to dismiss plaintiff's complaint
and deny its preliminary injunction to the extent that they
challenge the licensing amendment. The court agrees.

The NRC also asserts that the court should dismiss West
Chicago's claim that the procedures employed by the NRC in
granting the license amendment violated West Chicago's right to
due process on the same subject matter jurisdiction grounds.
Involved here is an express jurisdictional mandate to the court
of appeals which this court must respect. Although the plaintiff
is raising a constitutional claim, it is directed to, and arises
from the NRC's grant of a license amendment under the AEA.
Therefore, this constitutional challenge pertains to the final
order issued by the NRC and must be reviewed by the court of
appeals. See Campos v. FCC, 487 F. Supp. 865 (N.D.Ill. 1980),
aff'd on other grounds, 650 F.2d 890 (7th Cir. 1981). See also
Robinson v. Dow, 522 F.2d 855 (6th Cir. 1975). Contra,
Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231
(3d Cir. 1980), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66
L.Ed.2d 824 (1981).

Finally, the NRC contends that this court lacks jurisdiction to
address the plaintiff's claims concerning the decommissioning
plan of the Kerr-McGee site as set forth in Counts I through IV
of the complaint. Since a license amendment approving a
decommissioning plan has not yet been issued by the NRC, these
counts do not suffer from the same jurisdictional infirmities as
the other counts in the complaint. However, the allegations
concerning the decommissioning plan relate to an amendment that
has not been issued. As such, the action is clearly not ripe for
judicial review. Once a final order is issued by the NRC, review
is proper before the court of appeals. In the meantime, an
interim remedy is available in the form of pendent lite relief.
See First Jersey Securities, Inc. v. Bergen, 605 F.2d 690 (3d
Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62
L.Ed.2d 756 (1980); San Luis Obispo Mothers for Peace v. Hendrie,
502 F. Supp. 408 (D.D.C. 1981).

In sum, this court concludes that it lacks proper subject
matter jurisdiction to hear claims arising out of a final order
entered by the NRC. Nor can it address claims that are not yet
ripe for judicial determination. Rather than address the
jurisdictional issue, the plaintiff argues primarily the merits
of its entitlement to mandamus relief. While the court
sympathizes with the plaintiff's desire for a court to reach the
merits of its claims, we conclude that the proper forum
for this action can be found in the court of appeals.

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